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Tennessee Supreme Court Abandons Doctrine of Abatement Ab Initio

by David Reutter

The Tennessee Supreme Court held “the doctrine of abatement ab initio must be abandoned because it is obsolete, its continued application would do more harm than good, and it is inconsistent with the current public policy of this State.”

Before the court was an appeal brought by the attorney representing Hassan Falah Al Mutory. He was convicted by a jury of reckless homicide and sentenced on December 7, 2016, to three years in prison.

While his appeal was pending, he died.

His attorney moved the Court of Appeals to apply the doctrine of abatement ab initio, which stops all judicial proceedings and renders the defendant as if he or she had never been charged. The State argued the doctrine “no longer fits within Tennessee’s jurisprudence.” The appellate court rejected the State’s argument and applied the doctrine. The State sought and was granted review in the Tennessee Supreme Court.

That court observed the doctrine of abatement ab initio is a “legal curiosity” for only a few cases among the thousands of cases each year that seek its application. The doctrine’s application is, however, now “hotly debated” throughout the country because of some high-profile defendants’ deaths. 

The doctrine came to prevalence as courts throughout the U.S. implemented the right to appeal and concluded that punishment is not final until the time an appeal is exhausted. The legal landscape, however, has changed with implementation of victims’ rights, which include being kept informed of criminal proceedings, the right to fair and compassionate treatment, to be paid restitution, and other rights. Twenty-eight states do not apply the doctrine of abatement ab initio.

Tennessee in 1990 passed the Victims’ Bill of Rights, and it amended its Constitution in 1998 to “preserve and protect the rights of victims of crime to justice and due process.” The Tennessee Supreme Court provided further protection with its decision in Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102 (Tenn. 2016), which allowed a victim to rely upon a criminal conviction in a civil case and avoid litigation issues already resolved in the criminal trial.

Yet, the doctrine is court precedent, so it was required to be considered carefully. Precedent can only be overturned “when there is an error in the precedent, when the precedent is obsolete, when adhering to the precedent would cause greater harm to the community than disregarding stare decides, or when the prior precedent conflicts with a constitutional provision.” Cooper v. Logistics Insight Corp., 395 S.W.3d 632 (Tenn. 2013).

It has been argued that abating a “conviction can have a detrimental impact on victims both emotionally and financially.” The Court, furthermore, found “abatement ab initio prioritizes the reputation of the deceased criminal and the financial interests of the criminal’s estate over society’s interest in the just condemnation of a criminal act and the victim’s right to restitution.” The Court concluded that it could “no longer countenance a doctrine that causes so much harm to the living for the sake of the dead.”

As to this case, the Court observed that there was no fine or restitution order, nor was a pending probate or wrongful death action pending. 

Accordingly, the Court overruled the Court of Criminal Appeals’ judgment abating the defendant’s conviction, dismissed the appeal, and reinstated the judgment of the trial court.

Notably, the Court directed appellate courts to consider this issue on a case-by-case basis going forward, explaining, “We do not by this decision foreclose the possibility that a future appeal may present circumstances that would warrant its continuation after a defendant’s death.” It asked the Advisory Commission on the Rules of Practice and Procedure to review the matter and recommend changes to the rules of procedure to be followed when a defendant dies while an appeal is pending. See: State v. Mutory, 2019 Tenn. LEXIS 298 (2019). 

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